Sign In or Create an Account.

By continuing, you agree to the Terms of Service and acknowledge our Privacy Policy

Energy

The Rule That Would Make IRA Tax Credits ‘Unworkable’

Regardless of who’s eligible for what and when, strict “foreign entity of concern” provisions could make clean energy incentives impossible to take advantage of.

•
The Chinese flag and solar panels.
Heatmap Illustration/Getty Images

The word of the moment in renewable energy is “unworkable.” That’s how the chief executives of two major renewables developers — John Ketchum of NextEra and Jim Murphy of Invenergy — described new requirements inserted into clean energy tax credits by congressional Republicans in recent weeks.

“The way they’re drafted, they’re unworkable,” Ketchum said of the requirements at a Politico summit held earlier this week. He was referring specifically to a new set of provisions in the House budget reconciliation bill which say that to qualify for the credits, companies must divest their supply chains from “foreign entities of concern,” a group of countries comprising Russia, Iran, North Korea, and China. But really, the rules are about China.

Around 80% of the global solar panel supply chain runs through China, according to the International Energy Agency. The batteries used in many stationary storage systems are almost entirely made in China, to name just a couple isolated examples. Starting in 2026, the bill mandates that developers seeking to claim the clean energy production or investment tax credits may not receive “material assistance” from China. That refers to any component or subcomponent (including critical minerals) that was “extracted, processed, recycled, manufactured, or assembled” by a “prohibited foreign entity,” defined as a company with at least 25% Chinese ownership or 10% Chinese debt holdings, according to a memo by the law firm Norton Rose Fulbright. The rules become even more strict in 2028. Similar strictures were also added to the 45X advanced manufacturing tax credit.

A small modular reactor has at least 10,000 component parts, Ketchum told the Politico audience. “We come to find out that one of the screws in the bolts, used by one of the suppliers five layers down … was actually sourcing the bolt and the screw from China. Guess what happens? You’re disqualified, all your tax credits for that small modular reactor go away,” Ketchum said.

“How in the world are you going to trace five layers down to a subcontractor who’s buying a bolt and a screw?”

Murphy, the Invenergy CEO, put it more succinctly at an industry conference last week. “The supply chain can not support that, and won’t be able to support that for several years. It’s just an unworkable provision.”

While these may sound like the exaggerations of executives eager to avoid paperwork or costly new investments, analysts who have looked at the bill’s language have similarly concluded that the language is both so vague and so broad that determining whether a company has complied would be almost impossible.

Analysts at the investment bank Evercore wrote in a note to clients last week that while the new FEOC framework “ostensibly aims to keep China out of U.S. energy supply chains, it would likely bury companies and their suppliers in such onerous paperwork and diligence that the remaining tax credits are rendered largely unusable.”

Foreign entity of concern rules are not new — versions of them appear in the CHIPS and Science Act and the Inflation Reduction Act’s electric vehicle tax credits. The FEOC rules in the One Big, Beautiful Bill are far more extensive, however.

The Senate may look to loosen the rules, according to Axios, and several House Republicans have signed (yet another) letter, this one referring to the restrictions as “highly restrictive and onerous” and “overly prescriptive and risk undermining U.S. competitiveness.”

Should the FEOC provisions become law, their exact implementation will be up to the IRS. In the case of EVs, the tax agency came out with proposed guidelines in the months after the Inflation Reduction Act was enacted, but didn’t finalize them until 2024. Even complying with those required a “Herculean” effort from the EV and battery industry, Albert Gore, head of the Zero Emission Transportation Association, told me.

Gore also questioned whether the rules would be “workable” as written. To determine whether compliance would be worth it, Gore said, you have to evaluate how close an industry is to complying in the present, and the value of complying in the future, and the cost to get there.

Given that the clean energy and manufacturing credits sunset after 2031 (except for wind components, which sunset earlier), that calculation may very well come out negative. And then there’s the deadline to even qualify for the clean energy tax credits in the first place, starting construction two months after the bill passes, according to the House language.

The EV rules did ultimately support U.S. manufacturing, Gore told me. “It was a pretty efficient investment in American manufacturing, kind of disguised as a consumer EV credit,” he said. “But it was a very, very stringent credit.”

Xan Fishman, senior managing director of the energy program at the Bipartisan Policy Center, was skeptical that the FEOC provisions in the budget reconciliation bill would do anything to bolster U.S. manufacturing. “Intricate and complicated doesn’t make it more effective,” he told me.

“You would have a disallowance of credit if you are a foreign entity of concern, or you are a foreign influenced entity of concern, which might mean that one of your suppliers is a foreign entity of concern, or one of your supplier’s board members is from China or they have a family member that’s from China that runs a foreign entity of concern, or that family member has some business transaction involving debt with a foreign entity of concern, and their suppliers actually might have board members who have family members who have some debt arrangement with the foreign entity of concern,” Fishman elaborated.

This is where workability really comes in.

“If the result of this is we have less U.S. manufacturing, we won’t have achieved the goal” of raising America’s global competitiveness. “Nor will we have been tough on China,” Fishman said.

The ironies of the legislation abound. “There's sort of that double whammy in there with the start of construction deadline, which to some extent, makes the FEOC moot,” Murphy, the Invenergy CEO, said at the conference. “If you don't start construction by the deadline, who cares about it?”

Ironically, if the Senate put in a more relaxed deadline to qualify for the credits, “then we have to really address those foreign entity of concern provisions,” Murphy added.

🔒

You’ve reached your free article limit

Subscribe to Heatmap News for unlimited access to daily energy and climate coverage.
To continue reading
Create a free account or sign in to unlock more free articles.
or
Please enter an email address
By continuing, you agree to the Terms of Service and acknowledge our Privacy Policy
Daily Briefing

The Senate Permitting Deal Contains a Data Center Double Tap

The bill would let states and utilities discriminate against data centers and crypto miners, requiring them to pay higher rates to cover the full cost of any system upgrades.

A data center.
Heatmap Illustration/Getty Images

Call it the data center double tap.

A wonky set of provisions in the Senate’s bipartisan permitting deal would rewrite federal electricity law to allow states and utilities to discriminate against artificial intelligence data centers and crypto miners for the first time.

Keep reading...Show less
Blue
Technology and permitting reform.
Heatmap Illustration/Getty Images

There’s seemingly plenty to celebrate in the Senate’s new 400-plus-page permitting reform bill, the Bipartisan American Affordability and Jobs Act, or BAAJA. The headline benefit — and the one drawing the most praise from energy hawks — is that expediting the buildout of energy infrastructure and transmission lines ought to bring tons more zero-carbon energy online. No doubt it will speed up fossil fuel projects as well, but modeling shows that renewables like wind and solar are disproportionately held back by the notoriously contentious and slow planning and permitting processes the bill seeks to overhaul.

Old-school renewables aren’t the only technologies that stand to benefit from BAAJA, however.

Keep reading...Show less
Green
AM Briefing

A Permitting Hallelujah

On Korean reactors, California plug-in solar, and Europe’s green steel champion

Announcing a permitting reform bill.
Heatmap Illustration/Getty images

Current conditions: Floodwaters from the remnants of Hurricane Polo breached a 20-foot dam in southern New Mexico, forcing evacuations • The Pacific’s active hurricane season continues as Hurricane Rachel threatens dangerous rip tides off Baja California • Further north in the Pacific, Tropical Storm Choi-wan is headed toward the Northern Mariana Islands.


THE TOP FIVE

1. The permitting reform omnibus just dropped

It’s 417 pages — or, for those of you who think in such terms, roughly two-and-a-three-quarters the length of a standard environmental impact statement. And it the landed yesterday with much fanfare. The Senate’s grand compromise on permitting reform, dubbed the Bipartisan American Affordability and Jobs Act, or BAAJA, is packed with sweeping changes that promise to upend how data centers are built, whether transmission lines get constructed at all, and speed up deployments of all kinds of energy infrastructure. My colleagues — there are five bylines on this sucker, if you have any doubt about how seriously Heatmap is taking this — have a dense and comprehensive explainer here.

Keep reading...Show less
Blue